AG: Openly carrying guns not an automatic charge
By SCOTT BAUER | Associated Press Writer
5:03 PM CDT, April 20, 2009
MADISON, Wis. - Gun rights advocates heralded a memo issued Monday by Wisconsin Attorney General J.B. Van Hollen saying that openly carrying a gun should not automatically result in a disorderly conduct charge.
The advisory memo came just two months after a judge ruled that a West Allis man was within his rights when he carried a gun on his property while planting a tree. He had been charged with disorderly conduct.
Van Hollen said his office received a number of questions about the issue from prosecutors around the state. Unless there are other circumstances, Van Hollen said in the memo sent to district attorneys, merely carrying a weapon shouldn't result in being charged with disorderly conduct.
"The decision to charge a defendant with disorderly conduct necessarily depends on the totality of the circumstances," Van Hollen said.
John Pierce, co-founder of gun advocacy Web site OpenCarry.org, praised Van Hollen.
"It shows our friends and our neighbors and the people in our communities that carrying a firearm legally and constitutionally is a very wholesome act," Pierce said.
Wisconsin is one of 29 states that allow people to openly carry a firearm without a permit, Pierce said. Permits are required in 13 states, in two states unloaded weapons can be carried in some areas, and it's barred in the other six states, he said.
Wisconsin and Illinois are the only states that do not issue permits for people to legally carry concealed weapons.
The West Allis case, and another one involving a Milwaukee man who was twice detained by police for carrying a holstered gun, shows that the open carry law in Wisconsin isn't widely understood, Pierce said.
Van Hollen notes in the memo that while weapons can legally be carried in the open, other laws specifically limit the possession of firearms in places like schools, bars and public buildings.
Police also are fully within their rights to stop someone who is openly carrying a weapon to investigate possible illegal activity, Van Hollen said.
Pierce accused Van Hollen of "taking the easy way out" by not providing more specific guidance for prosecutors on how to handle difficult cases. But he said it was understandable the attorney general would want to give them leeway.
Ralph Uttke, district attorney for Langlade County and president of the Wisconsin District Attorneys Association, said he agreed with Van Hollen's analysis.
"I wouldn't charge someone simply for carrying a firearm," Uttke said.
Uttke said he's never received a complaint about someone carrying a weapon openly in his northeastern Wisconsin county.
"People carry firearms a lot up here, especially people working in the woods where they might have a rifle or a handgun in case they encounter animals," he said.
In West Allis, where openly carrying a firearm is more unusual, resident Brad Krause was charged with disorderly conduct in August after he carried a gun in a holster while planting a tree on his property. In February a judge said he was within his rights.
Last week, Jesus Gonzalez of Milwaukee filed a federal lawsuit alleging that his constitutional rights were violated on two separate occasions when police in West Milwaukee and Chilton took him into custody because he was carrying a handgun in a holster.
In addition to seeking damages, Gonzalez is also asking for a declaration from a federal judge that openly carrying a firearm in Wisconsin alone does not constitute disorderly conduct.